Copyright Timothy M. Heap, 2000. All Rights Reserved.
Dread, irritation, and panic are all thoughts that people have when they receive their summons to jury duty. Maybe these emotions would not be felt if we all thought of it more as an invitation to participate in a very important aspect of our democracy. Maybe, if we really thought about the responsibility and importance of jury duty, we could actually look forward to it.
Recently, I was called to jury duty, and I admit, my first reaction was that this was a poorly timed annoyance. My thoughts turned to ways of delaying my service. When I did that a couple of times with postponements, I started to think about what I could do to get myself disqualified from jury duty.
I ultimately went to serve at my time and place and what followed has changed my view of jury duty forever.
Paying taxes, registration for the selective service, and jury duty are the only obligations that the government imposes on its citizens. That is, these are the things that we must do or be subject to fines and sanctions. In return for these obligations, we have a country with a strong military, freedoms to practice religion and speech in virtually any manner that does not endanger others, and, probably most importantly, the right to participate in governance either directly, by running for office, or indirectly, by voting for those to represent us.
The concept of a trial by jury has come a long way from the trial by ordeal of the Middle Ages. In medieval Europe, the poor or other "commoners" could find themselves subjected to the "Test of the Cold Water." This method of testing guilt or innocence involved bounding the accused in some manner, with rope, for example, and tossing them into a deep river or lake. If the body floated, the person was considered guilty. If the person sank, they were considered innocent, however, the now vindicated often drowned.
Another type of ordeal employed involved holding a glowing hot iron or reaching into boiling water to retrieve a stone. The hands of the accused would be bandaged and then examined three days later. If the wounds became infected, not an uncommon occurrence in the Middle Ages, the accused was deemed guilty.
A system of determining guilt based on whether the water rejected or accepted a body or whether a person got proper medical attention following a trauma seems outrageous when compared to the trial by jury that we enjoy today. The Sixth Amendment to the Constitution guarantees our right to a trial by jury. For this system to work, we must be active participants in the system. There are several important concepts to consider when looking at the trial by jury.
The first and most important concept is he role of the jury. The job of the jury is to answer questions of fact as presented by the evidence in the case. The judge, by comparison, deals with matters of law and instructs the jury how to apply the law. The jury determines the validity of the evidence as it may apply to the law as explained by the judge. Evidence may be physical or testimonial.
In a criminal trial, physical evidence will give the jury the background they need to consider the environment in which the crime was committed, weapons allegedly used to commit the crime, and anything else that either side in the trial believes incriminates or exculpates the accused. In a civil trial, physical evidence is important to either side to simply prove or disprove the case of damage by the plaintiff.
The jury also must be able to judge the credibility of witnesses that testify before the court. While an attorney in a case may attempt to present evidence in a certain light, they are only presenting their view of that evidence. The opinion of the evidence that matters is the opinion of the jury.
The next concept, and probably equally important, is that of the fair and impartial jury of one's peers. To be fair and impartial, members of the jury need to be intellectually honest. That means they must be able to evaluate the facts presented in the trial without prejudice.
A juror may have been a victim of a similar crime being tried or been in a similar position as the plaintiff or respondent of a civil trial, but, for the system to work properly, a juror must not allow that experience to influence their decision in evaluating the facts in the case before them.
Similarly, a juror cannot consider things not entered into evidence. A particular witness may not testify or certain items may not be presented as evidence. These events cannot be considered when deliberating the case.
A juror cannot use his own experience of law in rendering a verdict. Remember, the jury exists to answer questions of fact. Interpretation of the law rests solely with judge. If the judge incorrectly instructs the jury, then that is a matter for an appeals court. If the jury feels that the law is wrong, then we, as citizens, must influence the legislative process to change the law.
Finally, a judge will always instruct a jury that punishment cannot be considered when rendering a verdict. These days with federal and state "three-strikes" rules, the punishment for what appears to be a relatively minor crime could be quite severe. (My case described below has this exact element.)
Again, any issues that we, as jurors, have concerning punishment are issues that must be handled through the legislative process and not something to be unilaterally decided in a court.
The final two important concepts are related: innocent until proven guilty and reasonable doubt.
The concept of innocent until proven guilty means that entire burden of proof that a crime was committed is on the prosecution. Just because a trial is being held has no weight on the guilt of the accused. The accused, as he walks into that courtroom, is presumed not guilty of the indictment.
Now, the prosecution does not need to prove guilt beyond all possible doubt. The standard is called "reasonable doubt". The definition of reasonable doubt, out of necessity, is incredibly vague. The judge cannot tell the jury exactly what reasonable doubt is or else the judge could be seen as influencing the role of the jury: determining the truth and credibility of the evidence in the case.
Generally, though, reasonable doubt exists if a reasonable person (such as any member of the jury) can find some reasonable circumstance, as presented as evidence, for doubt. (Again, the case I present below shows how serious a matter reasonable doubt and innocence until proven guilty can be.)
Now I'm going to relate my recent jury duty experience. I am reproducing this story without the aid of a trial transcript, so I am relying on any notes I made to myself following the trial and the best recollection I have of the events as they occurred. While exact testimony is not reflected, the relevant facts are addressed.
The judge speaks to the entire jury pool, about 50 of us. He goes over some of the basics of the crime, names the accused, the victim, every witness each side in the may call and each of the attorneys and asks if anyone in the pool knows these people personally. The idea is to make sure that no possible member of the jury may be unduly influenced by personal knowledge of any of the players.
This trial was going to be simple, as criminal trials go the judge tells us. The prosecutor then stands up and presents the circumstances behind the case. The accused, Mr. Carlos Banuchi, allegedly, with an accomplice who was never apprehended, pushed the victim, Mr. Sylvestri Compres, to the steps of the Fifth Avenue and 42nd Street subway entrance in New York City.
Mr. Banuchi, holding Mr. Compres' left side, reached into his breast pocket and removed $472.00: four hundreds, three twenties, a ten and two ones. Both assailants then fled the scene.
The victim chased Mr. Banuchi a number of blocks all while shouting "police, police, help, help!" Mr. Compres finally caught up with defendant in a building lobby and detained him until police arrived. The defendant did not have the cash on his person, but the police located the exact amount in the exact denominations in a flower planter in the building's lobby, where Mr. Banuchi was sitting when police arrived.
The judge said that the case was going to move pretty quickly. There were not going to be a lot of witnesses on either side and the exhibits to be entered as evidence were going to be few. As criminal cases go, the judge said, this would be a short one. As I was going to find out, short does not mean easy.
From this point, interviews were performed with groups of potential jurors (called a panel) until both sides in the case found 12 regular jurors and two alternates. Before the interview, called voir dire, began, about six members of the pool were excused for various personal reasons or conflicts that the potential juror knew would not allow them to be impartial.
From the remaining pool, it took another 36 people to find 14 that could be seated as the jury. This entire process took a whole day: about nine hours. The defense attorney made repeatedly during voir dire is the whole point of innocent until proven guilty. He drilled the point home, "I don't have to present a case if I don't feel I need to--do you understand that? Can you be that intellectually honest?"
The panel of twelve regular jurors and two alternates were finally seated and the trial began. The judge then states the two charges for which the jury must render verdicts. The first is Robbery in the Second Degree with the lesser, included charge of Robbery in the Third Degree. The second charge was for Grand Larceny with the lesser, included charge of Petit (Petty) Larceny. He also briefly covered the definitions of the indicted charges.
The prosecutor then begins with her opening statement. The opening statement shed little new on the circumstances of the case. From the opening statement, we found the details of Mr. Compres' day. He went to his place of work, a midtown hotel, near the New York Public Library. He picked up his check, which was cashed at the hotel. Before leaving the hotel, he folded the bills and placed them in his breast pocket. He placed his pay stub in another pocket.
We also heard that Mr. Compres had another $300.00 in a pant pocket that he discovered later was missing. The prosecutor said that what happened to that money is not known. Again, we heard that there were two people involved in robbery and that when Mr. Compres decided to give chase and the assailants ran in opposite directions, he chose to follow the man he saw take is $472.00. "This is a pretty simple case," the prosecutor insisted.
The defense attorney chose to make no opening statement.
It's important to realize at this point that no evidence was presented. The opening statement and the summation made by each side are not evidence. These people are not sworn witnesses. They are only presenting their sides of their stories.
The opening statement is where each side presents the strategy they are going to take in the trial. For the prosecutor, stating all the events of the crime, the approach was going to be to present everything that she intends to present as evidence meeting each criteria of the most serious elements of the crime. The defense, on the other hand, was going to find the holes in the prosecutions case and open them up for reasonable doubt.
The prosecution now gets to present its case: witness testimony and physical evidence.
The first witness called is the victim, Mr. Compres. He tells the story that we've heard a few times by now: during voir dire and in the prosecutor's opening statement. Mr. Compres, being a recent immigrant to the United States, had some minor language difficulty. The prosecutor did the best she could to keep him on target for his story.
Mr. Compres said that he only lost sight of Mr. Banuchi for a few seconds and that several people directed Mr. Compres into the building where Mr. Banuchi entered. He said that he caught Mr. Banuchi there and demanded his money back. He said that the defendant at first claimed not to have his money. When that did not convince Mr. Compres to let him go, the defendant then said something to effect of, "hey, we're both Spanish, let me go". Mr. Compres said that Mr. Banuchi spoke to him in Spanish.
Obviously unimpressed with the defendant's pleading, Mr. Compres held Mr. Banuchi until the police arrived.
The defense attorney, on cross-examination, hammered on the language issue attempting to make the victim's story fall apart. He focused on a word that appeared in the police report quoting the victim as saying that he was "slammed" to the ground. The defense attorney was trying to make the point that the victim never used the word "slammed".
The defense attorney also hammered on exactly how long Mr. Compres had lost sight of the defendant. After asking the question several times, Mr. Compres finally said, "it was about 30 seconds." Looking back, he made a good try, but it was entirely effective.
The next witness was the security guard in the building where Mr. Compres caught up and detained Mr. Banuchi. He testified that Mr. Banuchi ran into the lobby of the building and pretended to wait for an elevator out of view from the front of the building. He also testified that he saw the defendant pull a wad of bills from his pocket and start counting the money. He said that in a matter of seconds, Mr. Compres ran into the building lobby and confronted Mr. Compres.
When asked how much time elapsed between the defendant entering the building and the Mr. Compres entering, the security guard said probably not more than five seconds. The security guard, who also testified that he spoke Spanish, confirmed some sort of exchange between the two but could not confirm what was said.
The final two witnesses for the prosecution were the police officers who arrived on the scene and made the arrest. They testified to finding the money, in the denominations that Mr. Compres stated, in the planter in the lobby where the defendant was sitting. The police officer that wrote the report was cross-examined on the use of the word "slammed". No real point was made with the questioning except that, sometimes, an officer may use similar words to a victim's when they are not quoting the victim.
The prosecution rested its case.
One of the most striking things at this point is how little was made about the second person committing this crime. This is very important since the difference between Robbery in the Second Degree (Robbery-2) and Robbery in Third Degree (Robbery-3, the lesser, included charge) is the number of people involved. Robbery-3 is a single person and Robbery-2 involves more than one person. Remember reasonable doubt? Since we are to begin with assumption of not guilty, could one maintain reasonable doubt about a second assailant?
With the case that was presented so far, it seemed pretty clear that the defendant had taken the money. No opening statement by the defense would seem to indicate that they were going to rely completely on reasonable doubt so the jury would not convict on the most serious charges and, maybe, even acquit.
Going home from the trial that afternoon, I half suspected that we would be called by the court clerk and told that there was a plea arrangement made and the trial was over, thank you very much, have a nice day. That would have been the end of this jury experience. However, that call never came.
When we arrived at the courthouse the next morning, we were kept waiting in the hall for several minutes. Nearly forty-five minutes, I believe. Ah, this must be the plea arrangement, I thought to myself.
The court officer, the one responsible for us during the trial, comes out and starts taking our lunch order. She tells us that the trial will probably wrap up around lunchtime and we would go into deliberations. After a jury begins deliberations, they do not leave the court for lunch. The only time they are apart is when they go home at night, unless they are sequestered.
We are eventually called back into the courtroom. The judge turns to the defense attorney and asks if he would like to call any witnesses. He stood up and replied, "Yes, Your Honor, the defense calls Mr. Carlos Banuchi."
This was an incredible turn of circumstances. What could the defendant possibly have to say that would help his case?
The defense attorney, obviously unhappy with his client's desire to testify, asks the question, "Would you please tell the court what happened that morning."
Mr. Banuchi went on to tell a story about how he was out running some little errands in Brooklyn and Manhattan. As he was leaving this particular subway station, he saw a man attacking the victim. As he (Mr. Banuchi) passed by the victim, Mr. Compres reached into his breast pocket and handed him the money saying that the other guy was trying to take it. He claimed that Mr. Compres gave him the money "for safe keeping".
The defendant then said that he went to the top of the stairs to find a police officer to assist. That's when he realized that he had the victim's money and, being on parole, he would be violated if caught. So he panicked and ran.
The prosecutor probably could not have been happier being presented with this gift. First, she has the opportunity to grill the defendant about this incredible story and ask detailed questions over and over to see if his story falls apart. But the biggest thing the prosecution gains is to present his past convictions. If he had not testified, past convictions and arrests are not admissible. However, since the defendant testified, presenting evidence, these prior bad acts are allowed to be presented to impeach the witness's credibility.
Additionally, the prosecutor can now raise the question that the defendant's motivation for testifying (and lying as she would claim), is just so that the defendant can save himself from further trouble: avoid taking responsibility for what he did.
The prosecutor was very successful in all counts of what she had to do. Details of the defendant's story fell apart. The defendant's sincerity and altruism was very transparent as he sat there. Initially, he probably felt very proud of himself and his story. I suspect he realized his mistake when he was finally excused.
The defense rested its case and it was time for closing arguments. At this time, all the defense attorney could do was try to maintain that there was some room for reasonable doubt. He reminded us that we don't have to like his client ("Hey, even I don't like my client."), but he does have a right to a fair trial and to be presumed innocent until proven guilty.
The prosecutor took a very structured and unemotional approach to her closing argument. She addressed every point of the law that she had to prove and showed how she had done that. In the end, she said, the facts dictate that you must find the defendant guilty.
The judge then charged us. This is where he instructs us on the law and what issues we must find proven beyond a reasonable doubt in order to arrive at a guilty verdict.
The first point is that the money was taken forcefully. It did not matter to us whether the victim was "slammed" to the ground or not. It was apparent from his testimony and even the testimony of the defendant, that he was being physically restrained while having his money removed. Was the defendant credible when he said that he was given the money "for safe keeping?" We thought it was really unbelievable that someone would give money to a complete stranger for this reason. You're being mugged, if anything, you're going to give the person attacking you the money and hope that you'll keep your life.
We quickly came to the conclusion that Mr. Banuchi intended to rob the victim.
The second point we had to determine was whether there really was another person involved or not. If the defendant had not taken the stand and told his ridiculous story, many of us on the jury felt there was reasonable doubt on the second individual. This is where the defendant's testimony killed he reasonable doubt.
Let's say for a moment, that the defendant's story is true in so far as he came upon a crime being committed. If he were to take the money from the victim, but not through some coordinated effort with the other person, would that still qualify as two people acting in concert as defined by Robbery-3? After we got a second reading on what it meant to be acting in concert, we were able to determine that more than one person committing the same robbery whether they planned it that way or not, was indeed Robbery in the Third Degree.
Now going back to the testimony. If the defendant's story was true (which none of us believe), he was definitely guilty of Robbery-3. We also felt that his testimony was a desperate attempt to avoid the most serious charge. The only reason that he would get up there and blatantly lie like that is if he was actually guilty of the most serious charge. Either way you cut it, the defendant's testimony backfired.
After about an hour and a half, we found the defendant guilty of the two most serious charges against him, Robbery in the Third Degree and Grand Larceny in the fourth degree.
Finally, the reason that a jury is not to consider possible punishment in their deliberation is shown in this case. The defendant in this case is three-time loser. This conviction is his third violent felony and what could have been less than 10 years in prison with the likelihood of parole, no could be in excess of 25 years with no possibility of parole. This could be seen as a very heavy price to pay for stealing a relatively small amount of money that was immediately and fully recovered.
Our system of justice is the greatest and fairest in the world. Does it get abused? Yes. Can it be perverted for another's gain? Unfortunately, that happens. But the justice system in this country was carefully constructed with the checks and balances of the other branches of government.
As long as we, as jurors, keep the fundamental principles in mind: to be fair and impartial, to presume a defendant not guilty until proven beyond a reasonable doubt, and not to consider political and legislative issues. As long as every participant in the system performs his role in the spirit in which was intended, he system will work every single time.